La buena fe en la figura del enriquecimiento sin causa en materia de contratación estatal

Abstract

The public and private contractual systems are widely regulated by the rules of positive law. On some occasions, apart from compliance with legal solemnities, there are facts that give rise to the application and consolidation of the principles of good faith and unjust enrichment as a way to balance the asymmetric relationship between the State and the Contractor. Thus, this article outlines the basic criteria defined by law, jurisprudence and doctrine to preach the responsibility of the State derived from the benefit obtained by him in a relationship given outside the state contractual relationship. In this way, the applicable general protection regime will be presented and the implications of the figures in public law will be analyzed from their legal nature.

The Council of State until 2012 considered the existence of responsibility of the State in the application of unjust enrichment based on good faith and the equivalence of mutual benefits. Since the Unification Judgment, constitutional principles and general principles of the Law were put at risk, which made the situation less burdensome for contractors who provide services or execute works in favor of the State outside of the contractual framework. Thus, this article analyzes whether there is an affectation of the principle of Good Faith in the matter of State Contracting in Colombia within the application of the figure of enrichment without cause and if it constitutes an involution or legal backwardness in the art of administering justice.